Late Tuesday, at a high-stakes trial, Beef Products Inc. played a pre-recorded deposition it conducted with ABC’s Diane Sawyer and got a jury in South Dakota to hear the former World News anchor’s testimony that “pink slime” — a term used by critics for lean finely textured beef (LFTB) — constituted a “true description.”
The comment could be important in the multibillion-dollar defamation lawsuit brought by BPI against ABC over a series of reports in 2012 about the beef product. BPI has been staking much of its case on the way that ABC repeatedly used “pink slime” — 361 times, by one expert’s count — instead of the official name. According to the plaintiff, the term carries the implication that LFTB is unsafe, not sufficiently nutritious, and not really meat. Although ABC has been attempting at trial to demonstrate the substantial truth of such implications by showcasing concerns by regulators and customers with the product, the network is also arguing that descriptors are opinions and value judgments, not provable as false statements of fact. Sawyer’s observation of a “true description,” while not definitively establishing “pink slime” as being capable of truth or falsity, seemingly undercuts ABC’s argument and could be used by BPI in closing arguments down the line.
Sawyer was deposed before she was dismissed as a co-defendant in February.
Dan Webb, a partner at Winston & Strawn representing BPI, asked her whether she agreed that “slime” was a derogatory term for a food product.
“I agree it is not a distinctively appetizing term,” responded Sawyer. “I agree it is not pleasant. I am told it is descriptive. It is a true description.”
Webb, who focused much of his deposition on attempting to establish that Sawyer and others at ABC had hoped to instigate a “citizen’s brigade” marching into supermarkets with concerns about LFTB, seemed to realize the significance of what Sawyer had said when the deposition occurred. He paused, and after a beat, followed up by requesting confirmation from Sawyer that “pink slime” was indeed a “correct” descriptive term.
“It was a description of what it was like in the process,” said Sawyer on her second opportunity.
“Have you ever observed the process whereby LFTB is manufactured?” asked Webb.
“Not personally,” answered Sawyer.
“Have you seen photographs?” questioned Webb.
“I saw one,” said Sawyer.
Interestingly, South Dakota judge Cheryle Gering dismissed BPI’s claims against Sawyer precisely because she believed “pink slime” was accurate. According to a transcript of the summary judgment hearing in February, the judge pointed to Sawyer’s comments about pink slime being accurate because it captured public controversy as not being “sufficient to show reckless disregard or knowledge that was untrue.”
In other words, as a public figure, BPI failed to show actual malice on Sawyer’s part, but the judge left the door open elsewhere. At trial, the plaintiff must now make that case. For instance, jurors were also shown a deposition of ABC producer Brian Hartman, who was asked about a letter sent to ABC after the first “pink slime” report on March 7, 2012. The letter from BPI and the American Meat Institute discussed how beef trimmings used in LFTB were of similar quality to other cuts of meat. “I didn’t even read this letter as far as I can tell,” Hartman said.
On summary judgment, Gering ruled that a jury could find that ABC “was pursuing a negative spin on its story from the beginning before any research was done and then took steps in its investigation only to hear and report what fit within that negative image.”
During her deposition, while struggling to remember conversations in 2012, Sawyer defended ABC’s journalism.
“I read the script, and it seemed to be absolutely factual and fair to me as raising an important issue,” she testified. “We were in the business of trying to get answers for consumers.”